from the why-must-it-be-parody dept

Okay, let's just start out this post by noting the fact that abortion is an extremely controversial issue where people have very, very strong feelings on both sides. This post -- indirectly -- does deal with the debate over abortion, but it is not the point of the post, nor does the debate over abortion have anything whatsoever to do with the topics of interest here. Thus I am making a request, up front, that the comments on this post focus on the copyright issues raised by this ruling.

The case involves a clinic that performs abortions, Northland Family Planning, which made a video about the procedure. Another group, which opposes abortions, the Center for Bio-Ethical Reform, took those videos and made its own versions, with a very different message. I'm not going to embed the videos, but you can find the Northland video here or here. You can see the CBR video here (this one is NSFW). Northland was unhappy about CBR using their video to create one with a very different message... and sued, claiming copyright infringement.

The district court ruling found that the CBR video was fair use, though it did so in a convoluted and twisted way -- basically arguing that the new video was a "parody" of the original. It basically did this to try to fit with the clear rulings around parody, but in doing so avoided clear statements of how transformative use in a non-parody setting, for commentary or criticism, can also be fair use. Rebecca Tushnet's writeup goes through, in great detail, how the court seemed to get pretty contorted in trying to make this about parody, even when it's not really. That's unfortunate, because it makes perfect sense that the CBR video is fair use -- and it's obvious that Northland sued not because of worries about the copyright, but rather because it disagreed with the message CBR was spreading. That's a misuse of copyright law, but one that is all too common.

The first line in Tushnet's post makes the point about this kind of copyright abuse:

It's just too bad that the court couldn't make a simple ruling on the clear fact that the lawsuit was really an attempt to stifle a disagreeing viewpoint, rather than any of the basic rationales for copyright. Twisting this into a "parody" case makes for some awkward and slightly unbelievable claims in the ruling, when a statement on how commentary and criticism can be protected fair use would have been much more worthwhile.